IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH CR No.1665 of 2006 Date of decision : 11.8.2009 Municipal Council, Dera Basi, District Patiala and another ... Petitioners Versus Punjab Wakf Board, Ambala Cantt ...Respondents CORAM : HON'BLE MR.JUSTICE VINOD K. SHARMA Present: Mr.Prem Kumar, Advocate for the petitioner. Mr.Pawan Kumar, Sr.Advocate with Mr.Saquib Ali Khan, Advocate for the respondent Vinod K. Sharma, J. (Oral)
This revision petition is directed against the judgment and decree dated 3.1.2006 passed by learned Tribunal constituted under the Wakf Act vide which suit filed by the plaintiff-respondent for mandatory injunction directing the defendants-petitioners to remove the construction raised by them on the Wakf Land comprised in Khasra No.1044 (6-7) situated in the revenue estate of Madhopur, Tehsil Dera Bassi, District Patiala and for permanent injunction restraining the defendants, their agents, representatives and employees from raising further construction over the Wakf Land was decreed.
The plaintiff-respondent filed a suit, claiming that it was owner of the land bearing Khasra No.1044 (6-7), situated in the revenue estate of Madhopur, Tehsil Dera Bassi, District Patiala. The suit property was said to be the prime property, which is situated just near the bus stand. It was the case of the plaintiff-respondent that the defendants-petitioners-Municipal Council has no concern with the suit property, but they have started CR No.1665 of 2006 2 constructing pucca shops over some part of the suit land, without any authority and the consent of the plaintiff.
The suit was primarily based on the admitted facts that earlier Municipal Committee (petitioners herein) had sought declaration, that it were owners in possession of the land bearing Khasra No.1044 (6-7) in dispute, but the suit was dismissed by the court of Shri Gurdev Singh, learned Sub Judge, 1st Class, Rajpura vide judgment and decree dated 20.11.1989.
The Municipal Committee, Dera Bassi filed an appeal against the judgment and decree in the court of Additional District Judge, Patiala, but did not succeed.
It was further pleaded that one Phool Chand son of Ram Siri Chauhan had filed a suit against the Municipal Committee, Dera Bassi, in which it was held by the Civil Court that suit land belong to Punjab Wakf Board. In the suit filed by Phool Chand, the petitioner failed upto this Court.
The petitioners were now trying to raise construction illegally over the land belonging to the respondent.
The suit was contested, wherein the ownership of the plaintiff over Khasra No.1044 (6-7) was not disputed, but stand was taken that the construction, being raised on land belonging to the Municipal Committee. In support of this pleading, reliance was placed on the demarcation report of Shri Harbans Singh, Kanungo (retired) of Municipal Council, Dera Bassi.
The report was proved on record as Exhibit D-3. The reliance was also placed on Exhibit D-4 i.e. the register maintained by the Municipal Council showing the land in dispute to be under Municipal Council.
The learned Tribunal decreed the suit in view of the fact that the ownership of Khasra No.1044 (6-7) was that of Wakf Board, and that the CR No.1665 of 2006 3 petitioners (herein) had no right or jurisdiction to raise any construction thereon.
The learned Tribunal rejected the demarcation report, relied upon by the petitioners on the ground that Mr.Harbans Singh, Kanungo (Retd.) was an ex employee of the petitioners, and furthermore, he had not joined the plaintiff-respondent at the time of carrying on the demarcation.
The Tribunal wrongly held that the register of ownership was not produced by the petitioners.
In support of the assertion that the construction raised was not on Khasra No.1044 (6-7), reliance was placed on Exhibit D-4 i.e. register of ownership. The finding recorded by the learned Tribunal read as under :-
"9 The case of plaintiff Punjab Wakf Board is that the property in dispute falls in khasra No.1044; whereas the defendant Municipal Council has submitted that the Punjab Wakf Board has no concern with the property in dispute but the defendant Municipal Council could not produce any evidence to prove that the property in dispute is not the part of khasra No.1044. The defendant could not produce any record i.e. the immovable property register of the Municipal Council when particularly in para No.4 of the written statement, the defendant Municipal Council, Dera Bassi has categorically stated that the property in dispute is recorded in the immovable property register of the Municipal Council, Dera Bassi at page 44 in the year 1980 but the record has been intentionally withheld by the Municipal Council, Dera Bassi, which fully proves that Municipal Council, Dera Bassi has been concealing the true facts and that the property in dispute is part and parcel of Khasra No.1044, part of which i.e. land measuring 4 bighas 12 biswas is in possession of the Municipal Council. Further the Municipal Council has produced on record a copy of report given by one Harbans Singh, Kanugo (retired) of Municipal, Council Dera Bassi dated 30.11.99 Ex.D.3, in which said Harbans Singh has CR No.1665 of 2006 4 simply stated that the property in dispute, in which the shops are being constructed, has no concern with the Punjab Wakf Board. It is the ownership of Municipal Council, Dera Bassi. This report Ex.D-3 has not been properly proved by the defendants firstly because Harbans Singh Kanugo (Retired) has not been examined by the defendants nor any demarcation has been done by this retired Kanugo. He has simply stated that he had only measured the property in dispute nor he has mentioned that in which khasra number this property falls. Further this measurement has been done by the said official of the Municipal Council, Dera Bassi i.e. Harbans Singh, Kanugo (Retired) at the back of the Punjab Wakf Board. No notice was given to the Punjab Wakf Board at the time of measurement of the said property by said Harbans Singh Kanugo nor any person/representative of the Punjab Wakf Board was present at the time of said measurement. So, this measurement report submitted by Harbans Singh Kanugo (Retired), who is still alive but not examined, is of no help to defendant Municipal Council, Dera Bassi.
10. Further the conduct of the Municipal Council, Dera Bassi is not fair. Earlier they filed civil suit against the Punjab Wakf Board for declaration that Municipal Council, Dera Bassi is owner of the property in dispute bearing Khasra No.1044 (6 bighas 7 biswas), situated at village Madhopur, now within municipal limits of Dera Bassi. That suit was dismissed by the Court of S.Gurdev Singh, the then Sub Judge, 1st Class, Rajpura vide judgment and decree dated 20.11.1989, copy of which is mark G. This fact has been admitted by the defendants Municipal Council in their written statement. Not only this, one Phool Chand filed a suit for permanent injunction against the Municipal Council i.e. suit titled as Phool Chand Versus M.C. Dera Bassi, civil suit no.528 of 26.9.91 alleging that the land in dispute which is part of khasra No.1044 vests in Punjab Wakf Board. The defendant Municipality has no right, title and interest in the site in dispute. So, they be restrained from CR No.1665 of 2006 5 claiming rent of the property in dispute from plaintiff Phool Chand. That suit was decreed by the Court of Sh.J.B.Bhinder, the then Sub Judge 1st Class, Rajpura vide judgment and decree dated 15.9.95 holding that plaintiff Punjab Wakf Board is the owner of property situated in Khasra No.1044 and the Municipal Council, Dera Bassi has no concern with the property situated in khasra No1044. The defendant Municipal Council filed appeal against that judgment which was also dismissed by the Court of Shri B.S. Mehandiratta, the then Addl. District Judge, Patiala vide judgment and decree dated 10.9.97, copies of which are mark C and mark D, respectively, and the R.S.A filed by the Municipal Council in the Hon'ble High Court was dismissed in limini. All these facts have also been admitted by defendant Municipal Council in their written statement (para No.6). So, all this shows that the land/property in dispute bearing khasra No.1044 is the ownership of Punjab Wakf Board and the defendant Municipal Council, Dera Bassi is in possession of land measuring 3 bighas 12 biswas out of this khasra No.1044 as Gair Marusi under Punjab Wakf Board. It is not the property of the Municipal Council, Dera Bassi. Municipal Council, Dera Bassi has not sought any permission from the Punjab Wakf Boad nor they got any authority from the Punjab Wakf Board to raise construction of shops over the property in dispute bearing khasra No.1044 which is the ownership of Punjab Wakf Board as is evident from the entire revenue record as well as the facts admitted by the defendant Municipal Concil, Dera Bassi that the property in dispute bearing Khasra No.1044 is the ownership of Punjab Wakf Board (para No.2 of the written statement). The defendant Municipal Council has failed to prove on record that the shops are being constructed in the land which vests in Municipal Council, Dera Bassi as alleged by the defendants. Therefore, I hold that plaintiff Punjab Wakf Board is entitled to restrain the defendants or their agents/ representatives/ employees from raising construction over the wakf property i.e. the suit land CR No.1665 of 2006 6 bearing Khasra No.1044 and the plaintiffs are also entitled to the relief of mandatory injunction directing the defendants to remove the construction raised by the defendants in the wakf land comprised in khasra No.1044 (6 bighas 7 biswas), situated in the revenue estate of Madhopur Tehsil Dera Bassi, now within the municipal limits of Dera Bassi, District Patiala. Resultantly, I decide both issues Nos. 1 and 2 in favour of the plaintiff and against the defendants."
The reading of the judgment shows that the suit of the plaintiff-
respondent has been decreed, on the ground that defendants had failed to lead evidence to prove that construction raised by them, was not on the land of the Wakf Board.
The finding recorded by the Tribunal cannot be sustained, being against well established law, that the plaintiff is to stand on his own legs to succeed, and decree cannot be passed on the weakness of the case of the defendants.
It was for the plaintiff-respondent to have proved, by leading evidence that the construction being raised was on Khasra No.1044 (6-7). No evidence was led by plaintiff/respondent to prove the encroachment on Khasra No.1044 (6-7), which was admittedly in the ownership of Wakf Board. The finding of learned Tribunal, therefore, cannot be sustained.
This revision petition is allowed, the judgment and decree under challenge is set aside. The case is remanded back to the learned Tribunal, to adjudicate, the question as to whether the construction raised/ being raised by the Municipal Council, Dera Bassi falls in Khasra No.1044 (6-7). If that be so, the plaintiff will succeed as there is no dispute between the parties that the land falling in Khasra No.1044 (6-7) belongs to the plaintiff-respondent.CR No.1665 of 2006 7
The parties through their counsel are directed to appear before the learned Tribunal on 14.9.2009. The Tribunal shall give two opportunities to each of the parties, to lead additional evidence, if so desired.
[ Vinod K. Sharma ] Judge 11.08.2009 Sd`